Little v. Ellis

1988 Mass. App. Div. 1, 1988 Mass. App. Div. LEXIS 8
CourtMassachusetts District Court, Appellate Division
DecidedJanuary 11, 1988
StatusPublished
Cited by3 cases

This text of 1988 Mass. App. Div. 1 (Little v. Ellis) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Little v. Ellis, 1988 Mass. App. Div. 1, 1988 Mass. App. Div. LEXIS 8 (Mass. Ct. App. 1988).

Opinion

Ru ma, J.

This is an action in contract in which the plaintiff seeks to recover the balance due and interest on a promissory note executed by the defendants. Count II of the plaintiffs complaint is for money had and received.

The matter is before the Appellate Division on the basis of two Dist./Mun.Cts. R. Civ. P., Rule 64 reports. The first report, signed by the trial justice, was sought by the defendants as appellants. The report indicates that the plaintiffs husband worked with defendant Edward Ellis who was the president of a corporation known as “Elco” which engaged in the business of selling, servicing and repairing heating and air conditioning equipment. From January to April, 1982, Edward Ellis obtained a total of $7,264.00 in loans from the plaintiff. Although intended to cover Elco business expenses, the money was expressly provided by the plaintiff as personal loans to Edward Ellis and his son, defendant Danny Ellis, which were understood by all parties to constitute the defendants’ individual and personal obligations. A written memorandum of a $5,000.00 loan made by the plaintiff to Edward and Danny Ellis was signed by both defendants in February, 1982. This note was amended by the plaintiff with the permission of Edward Ellis only in June, 1982 to include three additional loans made to the defendant totaling $2,264.00.

Judgment was entered for the plaintiff against defendant Edward Ellis in the sum of $7,264.00 and against defendant Danny Ellis in the amount of $5,000.00, plus interest, costs and attorneys’fees as provided in the promissory note. The defendants now claim to be aggrieved by the trial court’s denial of several of their requests for rulings of law.

The second report before this Division is an appeal initiated by one Laura L. Ellis as prospective intervenor. The report states that Laura Ellis, the wife of defendant Edward Ellis, holds title with her husband as tenants by the entirety to their principal residence at 372 Old Post Road, Sharon, Massachusetts. On August 24,1984, the plaintiff in the principal action, Ellen B. Little, secured a [2]*2real estate attachment in the amount of $15,000.00 on the property in question. A motion to discharge said attachment filed by defendant Edward Ellis was denied in the Superior Court Department on January 26, 1987. Following transfer of this action to the Framingham Division of the District Court Department, Laura L. Ellis filed a “Motion to Intervene and For Order Dissolving Attachment” pursuant to G.L. c.209, Sec. 1. In asupporting affidavit, Laura Ellis stated that she occupied the Sharon premises as her principal residence and that the money allegedly owed to the plaintiff by the defendants did not constitute a debt incurred for necessaries furnished to her or her family.

The motion for attachment dissolution was denied on March 25,1987. The report sub judice was thereafter timely filed ten days after judgment.

1. The defendants have effectively forfeited any right to a consideration of their appeal by failing to advance written argument in support of their contentions.

Buie 64(f) of the Dist./Mun. Cts. R. Civ. F. requires the filing of written briefs within fifteen days after notice of report establishment. No brief was filed by the defendants within the time prescribed, and no motion for additional time was ever submitted by the defendants. In the absence of the requisite briefs, the defendants’ request for permission on the day of hearing to present oral argument was denied. Rule 64(f) states: “[n]o oral argument will be heard in behalf of a party for whom briefs have not been filed.. .. The Appellate Division need not pass upon questions or issues not argued in briefs.”

Accordingly, the defendants’ appeal is dismissed for lack of prosecution. Fortier v. Coady Corp., 1984 Mass. App. Div. 266, 267; Weinstein v. Steigman, 1983 Mass. App. Div. 288, 290 and cases cited; Hill v. Motor Club of America Ins. Co., Mass. App. Div. Adv. Sh. (1978) 646.

2. The initial question posed by the second report of the denial of Laura L. Ellis’ “Motion to Intervene and For Order Dissolving Attachment” is Ellis’ standing to intervene in the principal action. We hold that although Ellis was not entitled to intervene pursuant to Dist./Mun. Cts. R. Civ. P., Rule 24(a), she was statutorily authorized to seek dissolution of plaintiff Little’s attachment of her property.

Intervention generally signifies:

the act by which a third party demands to be received as a party in a suit pending between other persons. The intervention is made for the pu rpose of being joined to the plaintiff, and to claim the same thing he does, or some other thing connected with it; or to join the defendant, and with him to oppose the claim of the plaintiff, which it is his interest to defeat. ... A stranger to a proceeding can have no interest, in a legal sense, in the claim asserted in a personal action unless he is a necessary party, in order adequately to enforce or to contest such claim.

Check v. Kaplan, 280 Mass. 170, 178 (1932). No evidence was advanced by Lau ra L. Ellis to demonstrate any connection to the contract action institu ted by Ellen Little against Edward and Danny Ellis which would practically or statutorily require her participation as a party in the litigation. Rule 24(a) of the Dist./Mun. Cts. R. Civ. P. which governs intervention provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the Commonwealth confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or [3]*3transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest adequately represented by existing parties.

The subject “property or transaction” of the principal case was the $7,264.00 loaned by plaintiff Little to defendants. Edward and Danny Ellis. Laura Ellis was not a signatory of the promissory note at issue in the case, nor was she in any way liable for the debts incu rred by her husband and son. The sine qu a non of intervention is a substantial interest in the subject matter of the litigation. See generally, Haverhill v. DiBurro, 337 Mass. 230, 235 (1958); McDonnell v. Quirk, 22 Mass. App. Ct. 126, 132 (1986); Mayflower Development Corp. v. Dennis, 11 Mass. App. Ct. 630, 635-637 (1981). Further, Ellis has cited no Massachusetts statute affording her an unconditional right to intervene as a party. See. e.g., G. L. c. 249, Sec. 5. Although G. L. c. 209, Sec. 1 protects a nondebtor spouse’s interest in a principal residence from seizu re or execution by a creditor of the debtor spouse, the statute does not create any right to intervene in an action unrelated to such property.

The unavailability of intervention as a procedural avenue did not, however, render Laura Ellis powerless to protect her interest in the Sharon property held by her and Edward Ellis as tenants by the entirety. Section 114 of G. L. c. 223 unequivocally provides:

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Cite This Page — Counsel Stack

Bluebook (online)
1988 Mass. App. Div. 1, 1988 Mass. App. Div. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-ellis-massdistctapp-1988.